Land provided in general real estate development projects and the purchase of apartment units in consideration thereof shall constitute a commercial transfer, not a replotting disposition.

It is reasonable to view that a building permit and approval for use pursuant to the Building Act provided land shares in general real estate development projects, and they purchased a lot apartment, not as a disposition of replotting pursuant to the Urban Development Act and other Acts, and that they transferred the land at a price for the price equivalent to the amount calculated by deducting charges from the sale price of a lot and apartment for providing land.

Article 88 of the former Income Tax Act (Definition of Transfer)

2015Gudan62906 Revocation of Disposition of Imposing capital gains tax

ZZ

YThe director of the tax office

March 28, 2017

April 18, 2017

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 41,641,410 on February 23, 2015 against the Plaintiff was revoked.

1. Details of the disposition;

A. The Plaintiff owned 13.08/1213 shares of 08/1213 (hereinafter “instant land shares”) among 13.08/1214 square meters (hereinafter “instant land”).

B. On July 20, 2006, the OOOO Co., Ltd. (hereinafter referred to as "OOOO") entered into an implementation contract with the Plaintiff (hereinafter referred to as "the instant contract") with the following in order to implement the new construction project of ○○○ apartment (hereinafter referred to as "the instant apartment") on the instant land.

Article 1 (Purpose)

The purpose of this Agreement is to ensure the successful completion of the main complex construction project (hereinafter referred to as the "project") by prescribing the status, rights, obligations, etc. of the Plaintiff and the OOOOO in providing the land owner with the delegation and development of the main complex construction to the OOO, and the OOO provided the exchange of the purchase rights of new buildings in return for the provision of the purchase rights of new buildings.

Article 3 (Method of Performance by Substitutes)

(1) The method of payment in kind provided by OO to landowners shall be determined by multiplying 4.64 per square meter by the land area registered by the landowners, and this shall be the area of payment in kind.

(2) A landowner may choose one from among commercial buildings, officetels, or apartment houses.

(3) A landowner shall recognize the sale price approved by the competent authority for the parcels of land, and settle accounts and pay the sale price of the remaining flats, excluding the area of payment in kind, to the OO.

(4) In selecting commercial buildings or officetels, it shall be calculated as follows: (The face value per real estate repayment 】 the area of payment in kind / the value of sales in lots / the number of commercial buildings sold in lots) and the remaining balance shall be settled.

Article 4 (Co-owners' Charges for Rights to Purchase Ownership)

Where the sale price of building facilities sold in lots exceeds the amount paid in kind by the landowner, the landowner shall bear the difference, and the standards and methods of payment shall be as follows:

(1) Charges shall be imposed on the landowners by subtracting the area received as payment in kind by the landowners from the sale price of buildings in lots.

(Sale Price - The area of payment in kind by landowners = the charges of landowners)

Article 6 (Trust Registration)

(1) A landowner shall register the land of the landowner in trust to a trust institution designated by theOO.

(3) When a trust registration is made, the truster shall be the landowner, the trustee shall be the trust agency designated by the OOO, and when a trust registration is completed, the landowner shall not terminate the trust until the project is completed.

C. On April 2, 2007, the Plaintiff entered into a management-type land trust agreement (hereinafter “instant trust agreement”) with ○ Real Estate Trust Co., Ltd. (hereinafter “○○ Real Estate Trust”) and completed on April 6, 2007 the trust registration (hereinafter “instant trust registration”) in the name of ○ Real Estate Trust.

Article 1 (Trust Purpose)

(1) A truster shall trust the land specified in attached (1) to the trustee, and the trustee shall acquire it.

② The purpose of this trust is to construct a main complex building on land and sell land and buildings (hereinafter referred to as "trust real estate") as trust property.

Article 3 (Construction of Buildings)

(1) A trustee shall require a construction company (hereinafter referred to as "construction company") selected by the trustee to construct the building: Provided, That if the truster makes a recommendation, the trustee may take such recommendation into consideration.

(2) A trustee shall, in advance, consult with the truster on the contract amount, methods of payment, period of construction and other important matters concerning the contract for construction works concluded with the construction company.

Article 7 (Delivery of Buildings and Publication of Trust)

A trustee shall obtain a delivery of a building from a construction company without delay after the inspection of use of the building and make registration of preservation of ownership and trust as trust property.

Article 8 (Methods of Sale, Management, and Operation of Trust Real Estate)

A trustee shall sell (Disposal) and manage and operate trust real estate in accordance with the following methods:

1. A trustee may sell the trusted real estate in lots on the amount and terms determined in a business plan;

2. Where reasonable grounds exist, a trustee may change the amount and conditions under subparagraph 1 in consultation with a truster, and may convert all or part of the real estate trusted from sale to lease;

3. A trustee may engage in necessary activities to improve repair and reproduction of trusted real estate by determining appropriate methods, timing, scope, etc.

Article 11 (Trust Property)

The trust property shall be as follows:

1. Real estate in trust and money in trust;

2. Sale price of trusted real estate (including contract price and intermediate payment);

3. Rental deposit and rental fees accruing from the lease of real estate in trust;

4. Property acquired by subrogation of real estate in trust.

5. Borrowings under Article 4;

6. Borrowings and debts for repayment of deposits, etc. acquired in connection with the sale of trusted real estate;

7. Other assets and obligations which have occurred in the course of performing trust affairs.

Article 12 (Trust Profits)

All proceeds from the sale of real estate in trust, rental deposit, and money management proceeds belonging to the trust property, and those corresponding thereto, shall be trust proceeds.

Article 13 (Initial Beneficiary)

The first beneficiary of this trust shall be the truster, but the third person shall be the beneficiary with the consent of the trustee.

Article 14 (Right to Benefit)

(1) A beneficiary shall acquire trust proceeds calculated by the method prescribed in the trust deed.

(2) A beneficiary shall receive the trust property at the time of termination or termination of the trust deed according to the prescribed method.

Article 16 (Transfer, Succession and Pledge of Rights to Benefit)

(1) No beneficiary shall transfer, succeed, or establish a pledge on the right to benefit without the consent of the trustee.

(2) A person who acquires or succeeds to a right to benefit shall succeed to the rights and duties of the beneficiary corresponding to the ratio of shares.

Article 24 (Termination of Trust Contract)

(1) No trust contract shall be terminated.

(2) Notwithstanding the provisions of paragraph (1), where the trustee is unable to achieve the purpose of trust due to natural disasters, changes in the economic situation or other inevitable causes, or where the performance of trust affairs is impossible or considerably difficult, he may terminate the trust contract after consultation with the truster and

(3) Notwithstanding the provisions of paragraph (1), a trustee may terminate the trust contract in any of the following cases:

1. Where the restricted real right related to the land has not been cancelled after this contract was concluded;

2. Where it is impracticable to promote a project because approval of a project plan or authorization or permission related thereto is not obtained or cancelled.

3. Where the truster has consulted with the trustee on other inevitable grounds.

Article 25 (Termination of Trust)

A trust contract shall be terminated in any of the following cases:

1. Where the purpose of trust is achieved;

2. Where the purposes of trust can not be achieved;

3. Where the period of trust expires;

4. Where a contract is terminated under Article 24;

Article 26 (Delivery of Trust Property upon Termination of Trust)

Where a trust contract is terminated, the trustee shall deliver the final calculation to the beneficiary in accordance with the following methods:

1. A trustee shall cancel the registration of trust and transfer the trusted real estate to the beneficiary in the existing condition after completing the registration of transfer of ownership;

D. On December 5, 2007, the Plaintiff entered into a sales contract with ○ Real Estate Trust, and ○ Real Estate Trust, as a building owner, completed the registration of initial ownership on December 14, 201 with approval for use on December 15, 201 after completing the construction of the instant apartment.

E. On April 4, 2011, the Plaintiff completed the registration of ownership transfer (hereinafter referred to as the “registration of the instant apartment”) with respect to the instant apartment, 101 Dong 1801, among the instant apartment, on the grounds of sale and purchase from ○ Real Estate Trust as of December 5, 2007.

F. The Defendant, on February 23, 2015, determined and notified capital gains tax of KRW 41,641,410 to the Plaintiff on February 23, 2015 (hereinafter “instant disposition”).

G. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on May 17, 2015, but was dismissed on September 15, 2015.

Facts that there is no dispute over recognition, Gap evidence 1 through 4, 7, Eul evidence 1 and 2 (provisional number)

evidence, including branch numbers), the purport of the whole pleading

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. Whether the instant land was transferred

1) The plaintiff's assertion

The plaintiff provided an OO with the share of the land of this case in accordance with the contract of this case so that the apartment of this case can be newly constructed, and the plaintiff acquired the unit apartment of this case. Since the plaintiff actually newly constructed the apartment on his own land, the part corresponding to the area of the site of the unit of the unit of the unit of the unit of this case among the share of the land of this case cannot be deemed

2) Determination

A) Article 88(1) of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter “Income Tax Act”) defines a transfer as “the actual transfer of an asset at cost due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset”. Article 88(2) of the same Act defines a “land category or parcel number as a replotting disposition under the Urban Development Act or other Acts, or where a land category or parcel number is changed due to a land substitution disposition under the Urban Development Act or other Acts, or appropriated

It is stipulated that the transfer shall not be considered as a transfer.

B) In light of the following circumstances revealed in light of the aforementioned facts and the purport of the entire pleadings, it is reasonable to deem that the Plaintiff transferred the instant land shares in accordance with the instant contract at a price equivalent to the amount calculated by deducting the instant shares from the sales price of the instant several apartment units, in return for payment.

① The instant apartment construction project is a general real estate development project for which a disposition for building permission and approval for use was taken place in accordance with the Building Act. For the said project, the Plaintiff entered into the instant contract individually according to the intention of free with OO, and accordingly, the Plaintiff provided ownership in the instant land and purchased the instant several apartment units, and there is no ground to deem that the said series of procedures were conducted due to a replotting disposition under the Urban Development Act and other Acts as stipulated in Article 88(2) of the Income Tax Act.

② The content of the instant contract provides the instant land shares for the new construction of the instant apartment, and as a price for the purchase of the instant several apartment units, the difference between the appraised value of the instant land shares and the selling price of the instant several apartment units is settled. In this case, the Plaintiff’s share in the instant land is the Plaintiff’s share in the instant land, and the ownership of the instant several apartment units sold by the Plaintiff is the right to the site of the instant apartment unit, which is an apartment building, as an element of the instant apartment unit. In other words, the instant share in land is an independent right from the ground building, but the site ownership is all the rights that cannot be separated from the aggregate building. Even for the same purpose of land, since each right is entirely different from the legal nature, it is difficult to view that the Plaintiff newly constructed a water-sale apartment unit on its ground while maintaining part

③ The instant charges, which the Plaintiff provided the instant land share and settled after being sold in lots, are the amount calculated by subtracting the sales value equivalent to the area of payment in lots, multiplied by the ownership of the instant several apartment units from the sale price of the instant several apartment units. The method of settlement is for the convenience of settlement by calculating the value of the instant land share provided by the Plaintiff and the value of the instant several apartment units sold by the Plaintiff according to the respective calculation methods, and by allowing the Plaintiff to pay only the difference, and it is based on the premise that the value of the instant land share and the value of the instant several apartment units are paid. Of the instant land shares, it cannot be said that there was no transaction regarding the land equivalent to the area of the ownership of the instant several apartment units, or that no compensation was paid for the said part.

B. Regarding the timing of transfer

1) The plaintiff's assertion

The time of the transfer of the instant land shares is not February 14, 201, the registration of ownership preservation for the instant land was completed in the name of ○ Real Estate Trust, but rather on April 6, 2007, when the registration of the instant trust was completed in the name of ○ Real Estate Trust.

2) Determination

In light of the following circumstances, it is reasonable to view that the time of transfer of the instant land shares was February 14, 201, when considering the aforementioned facts and the purport of the entire pleadings.

① The Plaintiff agreed to transfer the instant land shares to the owner in accordance with the instant contract. Until the completion of the instant new construction project, the Plaintiff agreed to entrust the instant land shares to ○ Real Estate Trust. By completing the instant trust registration in the meaning of reservation pursuant to the instant trust agreement, the Plaintiff did not complete the disposition of ownership on the instant land shares. In this case, the trustee and the owner of the instant new construction project are the parties having separate legal status in principle, and the same corporation (○○ Real Estate Trust) is the owner and the trustee.

② The Plaintiff under the instant contract prevents the Plaintiff from unilaterally terminating the trust agreement even under the instant trust agreement after the trust registration of the instant land shares was made by the time the trust agreement is terminated, and even under the instant trust agreement, the Plaintiff, the truster, from unilaterally terminating the trust agreement. However, where the trust agreement may be terminated for a certain reason, or where the trust agreement is terminated or the objective business cannot be achieved, the trust agreement shall be terminated (Article 25 of the trust agreement). In such cases, the registration of the trust on the trusted real estate shall be cancelled, the ownership transfer registration shall be completed for the buyer, and the trust property shall be transferred to the beneficiary in the existing state (Article 26 subparag. 1 of the trust agreement). In other words, the trust agreement is scheduled to terminate, and the trustee shall return the trust property to the buyer, beneficiary, etc., not

③ The price for the transfer of the instant land shares is that the Plaintiff purchased the instant several apartment units. The Plaintiff was in a state of unpaid payment until the instant new construction project is completed and the instant apartment registration is completed pursuant to the sales contract. The process was completed under the instant trust agreement and trust registration. The Plaintiff did not receive or agreed to pay the price for the land shares due to the trust agreement. In other words, the instant trust registration did not completely settle the price for the instant land shares.

④ As the purpose of the instant new construction project is achieved and the Plaintiff completed the registration of the instant apartment, it was necessary to prepare a method of guaranteeing the payment of the consideration therefor until the Plaintiff completed the registration of the instant apartment. On the contrary, from the perspective of the owner of the instant new construction project, even if the Plaintiff was unable to obtain full ownership of the instant land shares during the process of performing the instant new construction project, it was necessary to restrict the Plaintiff from disposing of the instant land shares in mind to a third party. Such need arises between the two, to restrict the use, profit-making, and disposal of the instant land shares within the scope of its purpose. Such registration of the instant trust appears to have been completed in order to restrict the use, profit-making, and disposal of the instant land shares within the scope of its purpose

⑤ Although there is an expression "the substitute repayment area" under the contract of this case, it merely appears that the price received by the plaintiff in response to the share in the land of this case is the numerical value converted into the area of the unit apartment of this case, and it does not mean that the actual payment is made. Although the preservation of ownership of this case cannot be viewed as the payment in lieu of the plaintiff, the fact that the transfer of ownership in this case has been actually completed with the registration of preservation of ownership of the plaintiff's share in the land of this case is not changed.

C. As to the computation of transfer value

1) The plaintiff's assertion

The transfer value is illegal to calculate the transfer value on the basis of the sale price determined by the OOO as the sum of the amount equivalent to the actual transaction price and the cash liquidation amount.

2) Determination

According to the above facts, the Plaintiff agreed to recognize the sale price of the instant several apartment units approved by the competent authority (Article 3(3)), and to bear the amount calculated by subtracting the amount of the Plaintiff’s payment in kind from the sale price (Article 4(1)). Thus, it can be deemed that the agreement was reached to regard the sale price as the basis for calculating the sale price. Accordingly, the transfer price of the instant land shares should be calculated based on the sale price according to the terms and conditions of the said agreement. The Plaintiff’s assertion on this part is rejected.

4. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.